Heritage issues are rarely far away for the property industry, and strategic development in my experience seems particularly vulnerable to its ‘charms’. To a large extent, that arises strategic sites naturally being situated on greenfield and settlement edge sites, close to small to medium sized settlements. In a landscape scattered with prominent ancient churches, country houses and their parks and gardens, listed rural farmhouses, and village cores designated as Conservation Areas, heritage, and in particular the setting of heritage assets, can have a major impact on development potential and risk.

The ‘setting’ of heritage assets is, and has been for some time, a difficult and contentious topic for the sector. It has a quasi-academic feel, and has always invited experts and non-experts alike to engage in how we appreciate heritage assets in their context, and how we understand their significance by reading them in relation to other buildings and landscapes. In my experience, much of this, at inquiry, has hinged on the meaning of a single word: ‘experienced’. The NPPF’s glossary identifies setting as follows:

The surroundings in which a heritage asset is experienced. Its extent is not fixed and may change as the asset and its surroundings evolve. Elements of a setting may make a positive or negative contribution to the significance of an asset, may affect the ability to appreciate that significance or may be neutral. (my emphasis)

The meaning of this word, and therefore the very meaning of setting, was the focus of a High Court judgement, delivered on Thursday last week (Steer v SSCLG [2017] EWHC 1456 (Admin)). In that case, the court identified that the extremely experienced inspector, John Gray, adopted ‘too narrow’ a definition of the word ‘experienced’, and therefore of setting as a whole. The Site, an extension to Allestree, a suburb of Derby, was within sight of the edge of the Kedleston Hall Registered Park and Garden (and an overlapping Conservation Area also covering the park), but out of Site of Kedleston Hall itself, hidden behind the ‘Derby Screen’. The Screen, a planned piece of planting of 1960s date, was designed to conceal Allestree and Derby from the Hall, and had been significantly reinforced by the Hall’s owners, the National Trust. The Inspector acknowledged that from the Park and Garden and Conservation Areas’ edges, the Site would be visible (and vice versa), and the significance of these assets would be harmed by this visual encroachment. The Hall, however, out of sight (and to the reasonable observer, it is implied, out of mind), did not have a setting that extended as far as the Site, given the lack of visibility. Without any views to or from the Hall, the Site, in his view, did not form part of the surroundings within which the asset was experienced. He then granted consent, concluding that the harm to the Park and Garden and Conservation Area’s setting were outweighed by the scheme’s public benefits, particularly in light of Amber Valley, the authority, having a housing land supply of little over three years.

Much of the objection to the scheme by Historic England, the National Trust, and local groups, focused on the inspector’s setting assessment having focused too much on the visual, on one’s ‘experience’ of Kedleston Hall and its surroundings being obtained by seeing the Hall, Park, Garden and surrounding landscape as one travelled around the vicinity. But, as Historic England’s own guidance, The Setting of Heritage Assets, identifies, while ‘the contribution of setting to the significance of a heritage asset is often expressed by reference to views’, the contribution of setting to significance ‘depends on a wide range of physical elements within, as well as perceptual and associational attributes pertaining to, the heritage asset’s surroundings.’ The court agreed with these parties ultimately that focusing purely on whether there was any intervisibility between the Site and Kedleston Hall as a heritage asset in this case failed to take into account the Site’s ‘historical, economic and social connection’ to the Hall. This connection emerged largely from the Site having historically formed part of the Hall’s large estate.

This conclusion prevents decision makers and applicants from relying on the fact that a heritage asset might not be visible from the Site (and vice-versa) to argue that no impact on setting will arise. Instead, it reinforces the already extant idea, present within The Setting of Heritage Assets, that historic associations, in terms of ownership and function, for example, can allow land without any visual connection with a heritage asset to still a part of its setting, and still contribute positively to its significance.

Where does this leave us? As I’ve implied above, I don’t think there’s anything particularly ground-breaking about the conclusion, and I have been cross-examined on the issue at inquiry. But, the decision does reinforce the need for applicants, their consultants, and decision-makers to look carefully at whether there are historic, associative connections between heritage assets and land in the vicinity. There must be a logical limit to this (some country houses historically had estates covering hundreds of thousands of acres, and this land cannot all be considered equally to contribute positively towards significance), but it’s clear that the issue is now live, and sensitive. Beware of distant heritage assets, kids.